Appeals Court: Kamenetz's Death Doesn't Mean Oaks Should be Removed From Ballot

The Maryland Court of Appeals denied a motion Friday to reconsider its refusal to order the name of disgraced ex-lawmaker Nathaniel T. Oaks off the 41st District’s primary ballots, rejecting an argument that the sudden death last week of Democratic gubernatorial candidate Kevin B. Kamenetz could cause all the state’s ballots to be reprinted.

In a 6-1 decision, the state’s highest court, with barely a comment, refused to take up a motion filed last Friday by lawyers for three 41st District voters that it reconsider ordering the State Board of Elections to reprint the West Baltimore ballots in light of Kamenetz’s death.

The decision brought to a close, at least for now, the complicated issue that sought to link the question of whether the name of Kamenetz or his replacement should appear on the ballot, after his death, with the question of whether Oaks’ name should be on the ballot, after he resigned from the Maryland Senate, pleaded guilty to two federal felonies and then withdrew his state voter registration.

The names of Kamenetz, 60, the former Baltimore County executive who died unexpectedly May 10, and his running mate, Valerie L. Ervin, 61, of Montgomery County, will appear on the June 26 primary ballot as Democratic candidates for governor and lieutenant governor, respectively.

On Thursday afternoon, capitalizing on a heretofore little-known section of state election law, Ervin filed paperwork to take Kamenetz’s place as a candidate for governor and name her running mate, Marisol A. Johnson of Baltimore County, as candidate for lieutenant governor.

Chief Judge Mary Ellen Barbera

At the time of filing their certificates of candidacy in Annapolis, Linda H. Lamone, Maryland’s elections administrator, formally announced that the statewide ballots would not be reprinted and that, as per provisions in the law, the local election boards would instead instruct voters on the change in candidacy from Kamenetz-Ervin to Ervin-Johnson.

In turn, first thing Friday morning, assistant attorneys general representing the state elections board, filed objections with the Court of Appeals to the motion that the high court reconsider its May 2 decision about reprinting the 41st District ballots. The state’s lawyers cited Lamone’s decision Thursday not to reprint any of the state’s ballots, regardless of the circumstances.

Included with the filing was an affidavit signed by Lamone stating that after Ervin and Johnson filed their certificates of candidacy, she consulted with her staff and determined “that there was not sufficient time to change the ballots to reflect the successor candidates” to the Kamenetz-Ervin ticket “in advance of the primary election.”

Cited in her affidavit is a section of state election law that affords the elections administrator the discretion of determining whether there is enough time before the election to have the ballot reprinted.

In the state’s filing, the assistant attorney general representing the election board made clear that the ballots would not be reprinted.

“Because ballots will not be reprinted to reflect the change in the candidacies in the contest for the Democratic nomination for governor and lieutenant governor, plaintiffs’ requested relief is moot,” wrote Julia Doyle Bernhardt, the assistant attorney general who is the office’s chief of civil litigation.

Therefore, Bernhardt concluded, the motion to reconsider the court’s refusal to order Oaks’ name removed from the ballot “should be denied.”

In a one-sentence order signed by Maryland’s Chief Judge Mary Ellen Barbera, the Court of Appeals agreed.

“The court, having considered the appellees’ motion … and the opposition e-filed thereto … it is this 18th day of May, 2018, ordered by the Court of Appeals of Maryland that the appellees’ motion … for reconsideration be … hereby denied,” the high court wrote.

Judge Shirley M. Watts of Baltimore City dissented, as she did in the court’s original decision. Earlier, Judge Michele D. Hotten of Prince George’s County, also dissented, but on Friday sided with the majority.

A spokeswoman for the Ervin campaign said Friday that the candidate has spoken with attorneys supporting her bid, as well as with Maryland Attorney General Brian E. Frosh (D), and that a decision about any possible further action on her part is still being weighed.

“That is correct — my name will be on the ballot at the very least under the Kamenetz line,” Ervin said in a statement. “That said, we at the Valerie for Maryland Campaign sincerely believe that since the law allows me to run for Governor, we have the right to new ballots. Any champion of Democracy who wants Maryland voters to decide this election should want our Ervin Johnson ticket on the Democratic Primary ballot.”

Ervin is a former Montgomery County Council and school board member; her running mate, Johnson, 38, owns an insurance business and is a former Baltimore County school board member who abandoned a campaign for a District 2 County Council seat earlier this year.

State election officials repeatedly have described the tedious and complicated process of proofing, testing and printing 747 configurations of the primary ballot — each with different candidate listings for the varying combinations of congressional, legislative and local districts, depending on polling place locations statewide.

They estimate overall cost of reprinting the state’s 3.5 million primary ballots to be nearly $2 million, in addition to the roughly $1 million already spent on the process of printing and distributing them.

In what seemed like a last-ditch effort in the Oaks case, attorneys for three registered voters from the 41st District saw a possible opening last week as a result of the Kamenetz death and asked the Court of Appeals to reconsider its earlier decision.

The lawyers, H. Mark Stichel and Elizabeth A. Harlan, filed the motion last Friday asking the court to reverse itself and allow for Oaks’ name to be deleted from the 41st District ballots — should all the state’s primary ballots need be reprinted as a result of Kamenetz’s death.

In its earlier decision May 2, the court ruled in favor of the state, overturning a Circuit Court judge’s order for the State Board of Elections to remove Oaks’s name from the ballot.

That decision, coupled with the court’s refusal Friday to reconsider the matter, means that Oaks’ name will appear twice on the 41st District ballot, as a candidate for both the Maryland Senate and Baltimore City Democratic State Central Committee.

In the Senate race, his name will appear with two other Democrats vying for the seat, Jill P. Carter – who was appointed two weeks ago by Republican Gov. Lawrence J. Hogan Jr. to finish the last months of Oaks’ term — and J.D. Merrill, a relative political newcomer.

Supporters of Carter, a former member of the House of Delegates, want to see Oaks’ name removed because they fear that it will draw votes away from her, to the advantage of Merrill.

Oaks’ name also appears in a second spot on the ballot with 23 other candidates for the seven-member 41st District Democratic State Central Committee, including two of the plaintiffs in the case again before the Court of Appeals, Mitchell and Christopher Ervin.

State officials successfully argued that Oaks was a qualified candidate at the time of a Feb. 27 primary election filing deadline and the subsequent withdraw and disqualification dates, and, thus, there was nothing in the law that allowed them to remove his name from the ballot.

Although Oaks, 71, was under indictment at the time of the February filing deadline, he did not plead guilty for another month to two charges of wire fraud and honest services wire fraud stemming from a federal political corruption probe in which he took $15,300 in bribes from an FBI undercover source.

Two hours before his March 29 plea, Oaks resigned his Maryland Senate seat. He is scheduled to be sentenced July 17, three weeks after the primary.

Bill Zorzi was a Baltimore Sun reporter and editor for nearly 20 years, focusing on government and politics. An Annapolis bureau veteran, he wrote a weekly column, “The Political Game” for the paper.Zorzi and another former Sun reporter, David Simon, are longtime collaborators on acclaimed television projects, including the HBO series, “The Wire,” and the HBO miniseries “Show Me a Hero,” which dealt with an explosive housing desegregation case in Yonkers, NY.